Title IX law scrutinized as universities cut teams

Towson soccer players huddle after their final game. The program was a victim of budget cuts.

Towson soccer players huddle after their final game. The program was a victim of budget cuts. (Gene Sweeney Jr. / Baltimore Sun)

Jean Marbella and Carrie Wells, The Baltimore Sun

The men who play baseball and soccer at Towson University, run track at the University of Delaware and wrestle, swim or golf at any number of other colleges all heard the same reason when their teams were cut: Title IX.

To meet the federal law's goal of providing equal opportunities for athletes of both genders, schools have eliminated men's teams to keep their overallrosters in line with the number of women playing sports. But a growing chorus is crying foul.

"People are really upset that they're dragging Title IX through the mud to cut sports teams," said Towson University graduate Scott Hargest. He was a member of the task force that recommended, over his dissenting vote, cutting men's baseball and soccer to resolve what administrators said were budgetary and Title IX compliance issues.

Rather, he and others say, colleges that want to shift money to major, revenue-generating sports use Title IX's requirements as cover for eliminating lower-profile men's teams. While the Towson baseball team may have been saved by a plan crafted last week by state officials, the dispute generated by the school's decision remains.

The uproar has put Title IX, which celebrated its 40th birthday last summer, back in the spotlight. Title IX was created to bar the exclusion of women from any education program or activity that receives federal aid. The law never mentions sports, though that is the arena in which it has most often been cited, especially in the early years when women often had to fight to have teams or time on playing fields.

Over the years, critics say, the law has lost its way and has diminished opportunities for men as a result. Supporters of Title IX say that is a red herring. It is money — not gender — that is behind the move to eliminate certain teams, they say.

"It's a budget priority issue," said Lisa Maatz, policy director of the American Association of University Women. "Many schools decide they are going to invest in the marquee sports of basketball and football — to gain more visibility for their schools, or they believe they can make money out of it. The reality there is they made a choice."

Some would say Title IX limits that choice. When tight budgets force colleges to trim, men's sports are more likely to be cut than women's. That is because one way that schools comply with the law is by ensuring that the breakdown of male and female athletes matches that of the student body as a whole.

"If a school is nonproportional, the only teams they can cut are men's," said attorney Lawrence J. Joseph, who in 2007 sued unsuccessfully on behalf of male athletes at James Madison University whose teams were eliminated.

As a result, hundreds of men's teams across the country have been eliminated by schools citing Title IX. Joseph, whose Virginia-based group Equity in Athletics opposes the use of the proportionality test, said the law has strayed from its original intent.

"The original standard was that you should provide equal opportunity based on interest," he said. "Under the original standard, It was a vehicle to get women's teams up to speed, a women's basketball team with a men's basketball team. But the policy interpretation changed that."

The growing reliance on proportionality creates a problem for many colleges as women increasingly outnumber men in enrollment — even as the reverse often is the case when it comes to athletic participation. At Towson, for example, the athletics task force noted that on average, women make up 61 percent of the student body but 52 percent of sports team members.

Schools have gone through extraordinary contortions to boost the number of women on athletic rosters and match their growing share of a student body. It is particularly hard to do at schools that have football teams, with dozens of players and no comparable team for women.

Schools such as the University of Maryland Eastern Shore have started women's bowling teams, for example — the Hawks have become an NCAA powerhouse in that sport. Colleges have been allowed to count the same runner three times, if she competes in cross country and indoor and outdoor track. And, in some cases, men who practice with women's teams are allowed to be counted as female for the purposes of Title IX compliance. According to a New York Times article, a federal education official said male fencers at Cornell University who receive practice and coaching time with their female counterparts can be counted as members of the women's team.

But those strategies don't always work: Ten years ago, the University of Maryland, College Park declared "competitive cheerleading" a varsity sport — but the NCAA and the Department of Education's Title IX enforcers disagreed. Last year, facing a multimillion-dollar deficit in its athletic department, Maryland cut its competitive cheerleading squad — since renamed acrobatics and tumbling — along with seven other teams. (One, men's outdoor track, was reinstated when it raised enough money to continue for another year, and university officials are exploring the possibility of restoring more teams.) The university cited finances rather than gender balancing as the reason for the cuts.

But at Towson University, fears of a Title IX proportionality problem were raised as part of the decision to cut men's teams.

The university hired the New England law firm of Libby, O'Brien, Kingsley and Champion to review its Title IX compliance a few years ago. Towson previously had complied with the law through another method, in which a school agrees to regularly add women's teams.

But the law firm told Towson in 2011 that it could no longer rely on that mode of compliance because of a court ruling against the University of California, Davis. Because UC Davis had suspended a women's team many years ago, the court said, it could not show a continuous practice of adding teams.

Towson, having suspended a women's sport in the 1990s, now was at risk of failing to comply with Title IX, according to the lawyers, whose full report has not been released publicly. The school was advised to focus on proportionality to ensure compliance, leading to the decision to cut men's baseball and soccer to better balance the number of male and female athletes.

While schools whose athletic departments do not comply with Title IX stand to lose federal funding, that has never happened, according to the Women's Sports Foundation. Instead, the Department of Education works with the schools to remedy the problem, the foundation said.

A Department of Education spokesman said that while he couldn't comment on specific complaints, the agency generally "discourages the elimination of [men's] teams because it diminishes opportunities for students interested in participating in athletics, and so is contrary to the spirit of Title IX."

The department's policy, said spokesman Jim Bradshaw, "is to seek remedies that do not involve the elimination of teams. Because every Title IX athletics case presents a unique set of facts, [the agency's Office of Civil Rights] does not have one standard approach for compliance in every case."

Erin Buzuvis, a professor at Western New England University School of Law, said she could understand why Towson officials would be concerned about the UC Davis case because they could well be vulnerable to litigation.

But, she said, "It's still not right to say, 'Title IX made us cut these teams.' "

Towson administrators said the school is making the best out of a tight budget and a tricky legal situation.

"We're going to end up here with more sports than College Park at Towson on a budget at a fraction of College Park," said Marina Cooper, the deputy chief of staff for Towson's president, Maravene S. Loeschke.

Cooper noted that Towson has traditionally been popular with women — it began as a teachers' college — and said she sees that trend continuing. "At the end of the day, we have to come in balance [for men and women athletes] and the program has to be self-sufficient," she said.

Still, cutting the men's teams created much turmoil, with players, parents, alumni and other supporters mounting a fight to reverse the decision. Eventually, Gov. Martin O'Malley and other state officials jumped into the fray, questioning the university's decision.

They crafted a plan to save Towson's baseball team with an infusion of $300,000, but university officials say that doesn't entirely fix the problem — the state funds are not enough to close the athletic department's budget gap, and it revives the Title IX problem that the team eliminations were intended to solve. (The state plan includes $2 million for a new women's softball field.)

Meanwhile, it does nothing to restore the men's soccer team, which now joins a list of college programs across the country that have been cut in recent years.

In 2011, for example, the University of Delaware downgraded men's track and cross country teams to club status, citing the need to comply with Title IX requirements. Officials said the change would allow the overall gender breakdown of athletic rosters to more closely mirror that of the student body, which at the time was 58 percent female and 42 percent male.

In 2006, James Madison announced it would cut 10 teams — seven men's and three women's — saying the move would bring the athletic department into compliance with Title IX. The lawsuit filed on behalf of the players was dismissed, and attempts to appeal as high as the Supreme Court were unsuccessful.

The real problem, some say, is not Title IX but the amount of resources eaten up by major sports such as football.

"Why has sports become so expensive at the college level to run?" asked Dionne Koller, a law professor at the University of Baltimore and director of the Center for Sport and the Law. "There's a bigger issue with that, and Title IX becomes the scapegoat."

Koller said Title IX was written without much direction for how colleges could comply with the sports equality requirement. As a result, much of that has been worked out through the courts as schools have battled lawsuits. Litigation from disgruntled students is the biggest worry for colleges, Koller said.

It is not clear how Towson will address the Title IX issue if it keeps the baseball program after the General Assembly action. Renovating the women's softball field will help the school address disparities in facilities. But rosters will still not match the proportion of men and women in the student body.

"The issue of proportionality will not be addressed fully by just eliminating soccer," said Michael Anselmi, the university's attorney. "We still have Title IX work to do."

Anselmi said officials were considering adding a women's team but were unsure how to pay for it. It is also unclear whether the baseball team can organize enough donors to match the $300,000 in grants offered by the state annually. A plan to restore men's tennis would be abandoned if baseball is returned, officials said.

Advocates say the fight over adding and cutting teams presents an unfair image that colleges are robbing Peter to pay Paul — or perhaps robbing Peter to pay for Paula's sports.

"Men's sports are still getting the lion's share of the money," said Neena Chaudhry of the National Women's Law Center. "Unfortunately, I think Title IX is an easy scapegoat. It's really unfortunate because it sort of pits the men against the women."